About this case:

• Citation:
  [2024] IEHC 143
• Judgment:
  External link
• Court:
  High Court
• Judge:
  Ms Justice Mary Rose Gearty

Delivering judgment for the High Court, Ms Justice Mary Rose Gearty stated: “The point of the Scheme is to compensate those who are unfortunate enough to have suffered injuries at the hands of a criminal, not those who have suffered injuries at the hands of a criminal because they themselves are criminals.

“It seems to me that their dependents, particularly if, to some extent, they depend on a victim having made part or all of his money by breaking the law, cannot argue that it is a misfortune, such that the State must compensate them, to have been denied their livelihood because their provider’s criminal income has been cut off.”

Background

The applicants were the children of a man who was shot dead at close range on his doorstep on 13 August 2005. The deceased had 27 previous convictions.

The applicants through their mother sought compensation from the Criminal Injuries Compensation Tribunal, which refused their claim on the basis that the conduct or character of their father precluded them from compensation pursuant to paragraph 13 of the Scheme of Compensation for Personal Injuries Criminally Inflicted.

Paragraph 13 provides that compensation is not payable where the conduct, character or way of life of the victim makes it inappropriate that he should be granted an award, and that the Tribunal may reduce the amount of the award based on those factors.

The applicants applied to the High Court to quash the Tribunal’s decision.

The High Court

Ms Justice Gearty observed that this exclusion (in an earlier version of the Scheme) had been unsuccessfully challenged as contrary to EU law in the Court of Appeal in Doyle and Kelly v. Criminal Injuries Compensation Tribunal [2020] IECA 342 on the basis that it was discriminatory against those “unfortunate enough to have criminal records”.

The judge opined: “I do not think, and neither did the Court of Appeal, that this is misfortune but a matter of choice. Were it otherwise, our criminal justice system would not be fit for purpose. Our system rests on the principles that those who commit offences are responsible and that imprisonment deters and punishes. These principles make no sense if committing crime is a matter of bad luck rather than a matter of choice.”

The court noted the applicants’ argument that they were entirely innocent of criminal activity and should be entitled to recover under the Scheme, as paragraph 13 limits the refusal of an award to applications by the victim only.

Ms Justice Gearty considered that there were three reasons to apply the limitation in paragraph 13 to the applicants’ right to compensation: the wording of the provision, consistency within the Scheme and the legislative context, and as a logical extension of legitimate public policy reasons.

The judge found that on the plain wording of paragraph 13, “there will be no award in the case of a victim whose lifestyle makes it inappropriate to award anything to him. There is no express term restricting this denial of compensation to victim applicants only… Looking at the provision in the context of the whole Scheme, it appears that the more consistent and logical interpretation is that any applicant may be denied an award due to the character of the victim.”

The court referred inter alia to paragraph 6 of the Scheme, which aligns the Scheme with the Civil Liability Acts 1961–2017, which allows dependents to step into the shoes of the deceased in order to be fixed with the deceased’s contributory negligence, finding that “Paragraph 13 is only consistent with this interpretation if the Applicants are treated in like manner as the victim, had he survived”.

Ms Justice Gearty proceeded to consider the applicants’ submissions that the Tribunal’s decision was made on insufficient evidence, being the belief of gardaí that the attack on their father was drug related. The court noted that the gardaí’s belief was reasonable in the circumstances and was not the only evidence before the Tribunal, but in any event, it had never been suggested that the shooting was related to some other non-criminal event or that it was a case of mistaken identity.

The judge found no issue with the Tribunal’s reasoning, in that “the Tribunal specifically noted the nature and the extent of the convictions of the victim, the public policy reasons for refusing such an award – namely that it would be inconsistent in that the victim could not have benefitted from compensation and that it was not seeking to blame the dependents but withhold compensation from a victim whose conduct, i.e. his convictions and way of life, brought him within the terms of paragraph 13” and found that the Tribunal had not fettered its discretion in any way.

Turning to the public policy element of the case, Ms Justice Gearty reasoned that the Scheme is not in place to compensate criminals injured at the hands of other criminals, opining: “It seems to me that their dependents, particularly if, to some extent, they depend on a victim having made part or all of his money by breaking the law, cannot argue that it is a misfortune, such that the State must compensate them, to have been denied their livelihood because their provider’s criminal income has been cut off.”

Considering the “central tenet of EU law” that every decision must be proportionate, the judge noted that “paragraph 13 does not mean that if a person with 11 Road Traffic Act convictions was shot to death in entirely unrelated circumstances his family could not recover compensation… If, as here, it appears that the victim obtained some of his income from crime and had engaged in dangerous crimes, it is reasonable to find that his dependents, as a matter of public policy, ought not to collect compensation if, entirely foreseeably, he is injured or killed as a result of his criminal activities.”

Stating that “those who live by the sword, die by the sword”, Ms Justice Gearty remarked: “While I extend sympathy to the blameless children of this victim, who died in a cowardly and heartless act at the very doorstep of his home, I cannot agree that the dependents of a criminal who probably died as a result of his criminality should be compensated by the State for that injury to him. This is not to say that he deserved it and is very far from that, a distinction I want to make clearly. It is a much more nuanced but important principle: those who engage in crime do so knowing the risks.”

Conclusion

Concluding, inter alia, that the exclusion was not “disproportionate or discriminatory” and that the policy reasons behind it were arguably “so obvious that they need not be expressly stated”, the High Court refused to quash the Tribunal’s decision.

Cunningham, Cummins & Anor v. The Criminal Injuries Compensation Tribunal & Anor [2024] IEHC 143